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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gray, R v  EWCA Crim 1001 (27 March 2003)
Cite as:  EWCA Crim 1001
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B e f o r e :
MR JUSTICE MITTING
SIR BRIAN SMEDLEY
|R E G I N A|
|PAUL EDWARD GRAY|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR T FORSTER appeared on behalf of the CROWN
Crown Copyright ©
"material which relates to a man called Baker and another man called Brade... It showed that in November 1997 a man called Baker was arrested and charged with a number of offences of indecent assault and robbery allegedly committed in 1996 and 1997 in the Birmingham area. Following one of the assaults the assailant used a cashpoint card from one of the victims and while he did so a CCTV image of the assailant was obtained. Mr Harrow compared that with a surreptitiously taken photograph of the man Baker. He concluded that he (Baker) and the perpetrator of the offence using the victim's card at the cashpoint was one and the same person. Baker pleaded not guilty and was remanded on bail. In November 1998 another man was arrested. He subsequently admitted the relevant offences, including the assault giving rise to the use of the cashpoint card.
18. On 2nd July 2001 the CPS policy directorate issued a memorandum to Assistant Chief Crown Prosecutors noting that Mr Harrow had given unreliable evidence in the Baker case, was generally a poor witness who tended to lose his temper in the witness box and advised them that he should no longer be instructed as an expert witness for the Crown.
19. Thereafter the CPS became aware of a second case of misidentification involving Mr Harrow. In January 2001 he carried out facial mapping comparisons in connection with the investigation of a murder which had occurred in August 2000, following which the victim's car had been used at a petrol station where there was a CCTV camera. At the time the police suspected a man called Brade of being the murderer, although he was never arrested or charged with the offence. They obtained a video from Brade. It was from that that Mr Harrow carried out a comparison with the man who used the car at the petrol station. He concluded that it was highly probable that Mr Brade had been the man at the petrol station and there could be very little doubt that Mr Brade had also been the man at a musical festival at a local community centre. In fact a man called Mowatt was arrested for the murder. He admitted that it was he who was depicted in the various images and subsequently pleaded guilty to murder. It appears that Mr Harrow has now retired from the position he previously held at the Imagery Bureau."
"You may find the evidence of the various witnesses who saw the robber in the bank and outside the bank as being more persuasive than the scientific evidence as to the robber's estimate of height and facial features. But I emphasiSe that it is a matter for you to decide..."
There are difficulties with reliance on that comment. First, the eyewitnesses gave no relevant evidence about facial features; secondly, and therefore, the only expert evidence to which the comment could relate was as to height, which is not a significant identifying feature; and thirdly, the judge emphasised correctly that the assessment of the evidence, including the expert evidence, was a matter for the jury. As Mr Forster conceded in his written skeleton argument, it is impossible to say what weight the jury placed on Mr Harrow's evidence and in the judgment of this court it is impossible to say that it would have convicted if it had not heard it. For those reasons this appeal must succeed and the convictions be quashed.